“The USPTO should enjoy a fan at the helm—a knowledgeable fan and believer in what the USPTO is and does, and who can articulate and defend, in short sentences, its mission and vital purpose to the coming generations of America.”
Dear Howard Lutnick [the Trump Nominee for Commerce Secretary]:
In this busy transition season from one administration to the next, I am here to help! Lucky you! I have already penned an open letter to [the Department of Government Efficiency] DOGE regarding patents and America. I understand you are now interviewing candidates for the job of Director of the United States Patent and Trademark Office (USPTO). I have been in the fortunate position of having personally observed much of the last four decades of senior USPTO staff and their effectiveness. I have even written articles (for this publication) ranking them! I started my career there as a patent examiner and speech writer for then Patent Commissioner Donald Quigg in the Reagan years. Since then, I have run various patent related businesses and been in private practice as a patent attorney and teacher of patent prosecution practice (i.e., how to present and pursue patent applications through the USPTO until issuance). I’d like to share my thoughts on the attributes I’d suggest you look for in the next Director.
First, this person must be an unabashed fan of the patent system! There are enough critics in and out of government and in academia. The USPTO should enjoy a fan at the helm—a knowledgeable fan and believer in what the USPTO is and does, and who can articulate and defend, in short sentences, its mission and vital purpose to the coming generations of America. Too often, those within the patent world fail to successfully communicate the ongoing scaffold to societal progress the patent system and USPTO create.
Patents and the incentive system surrounding their creation have created the future of this country since 1790. This has been so because when you treat tangible ideas just like any other “property”, our capitalist system is extremely well suited to support the exploitation and use of that property. It is ownable and defensible and leverageable in the same way as any other property. There is no moral component; it is a general good for the nation, across all technical disciplines. If, once a patent is obtained, it is freely licensed, dedicated to the public, or preserved within and used by a single entity, it matters not. It is deployed at maximal value to those who own and control that property. Where government has in whole or part financed the basis for the property, then it, like any other owner, should predictably share in the reward. Bottom line: this nation needs more “intellectual” property in the form of patents, not less. Hence, the first question for an incoming Director should be:
1) “Are you a patent ‘fan’ and can you defend the USPTO and its needs for support for the role it plays, both political and economic, inside and outside an administration and across the globe?”
Next: The USPTO’s role in the patent system is simple: issue valid patents in a timely fashion. To do this, the USPTO needs to get working. Recent hiccups owing to COVID, and policies derived therefrom, have resulted in a growing backlog of unexamined cases. Hence, job one of the new hire is to get the USPTO working again. Hire new examiners into and in accord with the respective technical backlogs, i.e., computer scientists, biologists, etc., matched to the longest lines within the USPTO, and train them in-person. This training can be done at the main USPTO building in Alexandria and in each regional USPTO office around the country. After two years, and solid performance, a work from home or other flexible schedule may be permitted.
Working at the USPTO is exciting! It means playing a vital role in what comes next for the nation technically, whatever that may be. But only valid patents can perform that function. Hence, bolster the current examination system with the best search and analytical tools that can be brought to bear. Defensible property creates investment security. Indefensible property, i.e., patents that end up being invalidated, creates unpredictability and only speculative investment. Hence, the second question for the Director should be::
2) “Can you rapidly devise and implement a plan to get the USPTO busy and effective again?”
Next: Support efforts on Capitol Hill (such as the Patent Eligibility Restoration Act) to revise Judicial misdirection on what is eligible for protection via patents. The interests of the nation are served best by as little restriction as possible in this regard. If morality becomes a factor, for example, for medicines and treatments, then address that, if at all, during enforcement or licensing. Likewise for computer implemented methods. The work of our programmers, whose clay and molds are software and computers, need broad encouragement! AI is just the first wave of what’s next. There exist technologies we as yet do not know of and cannot comprehend, but if they are eligible for patenting, they will come. That basic belief has been an article of faith since the founding of this country and has been voiced by many a Director of the USPTO (beginning in 1836). Hence, the third question should be:
3) “Can you convince fence sitters and their lobbyists of the worth and vitality of the patent system for them and their interests?”
Get America investing again!
Next: Support additional legislative efforts to make the USPTO’s Patent Trial and Appeal Board (PTAB) mimic district courts when checking patent validity. This legislation (the PREVAIL Act) vests the patent holder with a similar property right, with presumed validity, and thresholds of proof, as in a district court. Inasmuch as this PTAB system was presented as a less expensive and faster solution than a district court, bolster that similarity. Hence, the fourth question:
4) “Can you implement legislation, if passed, to remake the PTAB in the mold of a district court, but with a technical and patent-sophisticated staff?”
Finally: Restore injunctions as a ready remedy for patent holders seeking to enforce their rights. Forced licensing or damage payments reduce patent holders to rent collectors, not owners. Hence, the last question to ask a candidate for Director should be:
5) “Can you articulate why the Constitutional imperative of exclusive rights was, is, and remains the correct application of the patent system?”
Best of luck Howard, in making your choice. We are all pulling for you and the USPTO, and Patent System!
